An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA05-1427


Filed: 2 January 2007

Carolina Limited Liability

    v.                            Buncombe County
                                No. 04 CVS 4265
a Delaware Corporation,

    Appeal by Plaintiff from judgment entered 1 August 2005 by Judge Gary E. Trawick in Buncombe County Superior Court. Heard in the Court of Appeals 6 June 2006.
    Kelly & Rowe, P.A., by James Gary Rowe, for Plaintiff- Appellant.

    Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Robert J. King, III, and John S. Buford, for Defendant- Appellee.

    STEPHENS, Judge.
    On 1 August 2005, without specifying the basis for its ruling, the trial court granted summary judgment in favor of Defendant and dismissed Plaintiff's breach of contract claim following a hearing on Defendant's motion for summary judgment held 18 July 2005. Plaintiff timely appealed, alleging that summary judgment was not proper. For the reasons set forth below, we affirm the trial court.
    After obtaining an order of the superior court extending thetime to file its action, on 27 October 2004, Plaintiff filed a complaint against Defendant alleging breach of contract and seeking damages in excess of $300,000. In its complaint, Plaintiff alleged that on or about 6 March 2001, the parties entered into a Purchase Agreement, by which Defendant agreed to sell “the Bynum House” to Plaintiff with the provision, among others, that the house be removed from Defendant's property on or before 31 December 2001. Plaintiff further alleged that at Defendant's request, Plaintiff delayed obtaining the required demolition permit to allow Defendant additional time for property design and development. According to the complaint, in July 2001, Defendant advised Plaintiff to proceed with securing the appropriate permit, and on or about 15 August 2001, Plaintiff submitted to the City of Asheville an application for a demolition permit for removal of the Bynum House. It is undisputed that Plaintiff never obtained the required permit to remove or demolish the subject property.
    Plaintiff further alleged that on or about 6 September 2001, Defendant asked Plaintiff to relinquish its rights under the Purchase Agreement. Plaintiff refused because the salvage value of materials Plaintiff planned to remove from the Bynum House was between $300,000 and $350,000. On 8 October 2001, according to the complaint, Defendant advised Plaintiff that it must “'remove the house from its existing site, relocating it on to another site andrebuild it completely thereon.'”
    Plaintiff alleged that Defendant breached the parties' contract by refusing to allow Plaintiff to demolish the Bynum House on its existing property and failed to deliver possession of the property to Plaintiff as stated in the Purchase Agreement.
    Defendant filed an answer, alleging, inter alia, that Plaintiff's claim was barred by the running of the applicable statute of limitations. Defendant also counterclaimed for damages alleging that Plaintiff had breached the parties' Purchase Agreement by failing “to take certain actions” by 31 December 2001. In reply to Defendant's counterclaim, Plaintiff denied it had breached the parties' contract.
    On 27 May 2005, Defendant proceeded with a Rule 30(b)(6) deposition, at which Jerry Gilley, managing member of Plaintiff, appeared and testified as Plaintiff's corporate representative. Pertinent to our resolution of the issues on this appeal, Mr. Gilley testified as follows:
    At the time the agreement was prepared, it was Mr. Gilley's intention to demolish the house. He had not decided whether to demolish it for salvage or catalog and rebuild it. Subsequently, Mr. Gilley decided that “it was not economically or geographically prudent” to move the house to a different location. At some point between 6 March 2001 and 20 May 2001, Mr. Gilley was given accessto the house, but claimed that he did not prepare an application for a demolition permit because Defendant asked him to put everything on hold until Defendant “was able to turn the house over” to him. At the time, Defendant had personnel, furniture, and other materials in the house. Mr. Gilley was not given the keys to the house until 20 May 2001, when he was asked again to wait before submitting a demolition permit application. It was Mr. Gilley's understanding that since the Purchase Agreement required all of the applicable permits to be obtained before 1 July 2001 and Defendant had asked him to wait, Defendant agreed that the 1 July 2001 deadline did not have to be met. Mr. Gilley acknowledged that no extension or revocation of the 1 July 2001 deadline was recorded in the contract nor confirmed in writing, and that no consideration was given for the alleged change in terms, even though he was familiar with the clause in the Purchase Agreement which required any modifications of the contract to be in writing.
    Mr. Gilley further testified that he received a letter dated 7 September 2001 from counsel for Defendant which stated that Plaintiff was not to access the Bynum House until Defendant was satisfied that Plaintiff would not sell parts of the Bynum House for salvage. Mr. Gilley considered this request by Defendant to be a violation of the Purchase Agreement.
    Additionally, Mr. Gilley received a letter dated 21 September2001 from Defendant's attorney, which stated that Defendant would not allow Plaintiff access to the house unless Plaintiff agreed to rebuild the house in a different location. Mr. Gilley testified that he also considered Defendant's position as set out in the 21 September letter to be a violation of the parties' agreement. In a letter dated 26 September 2001, Mr. Gilley informed Defendant that he disagreed with Defendant's interpretation of the Purchase Agreement.

    We first must determine whether this appeal is interlocutory. An interlocutory order is an order made during the pendency of an action that does not dispose of the case, but rather requires further action by the trial court to finally determine the rights of all the parties involved in the controversy. Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381, reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). In the case sub judice, the summary judgment order disposed only of Plaintiff's claim. There was no ruling by the trial court on Defendant's counterclaim against Plaintiff. Although the trial court's order did not fully dispose of the case, both parties to this action argue that this appeal is properly before this Court because it affects a substantial right. An interlocutory order may be appealed immediately if (1) it is final to a party or issue and the trialcourt certifies it for appeal, or (2) it affects a substantial right of the parties. Johnson v. Lucas, 168 N.C. App. 515, 608 S.E.2d 336, aff'd, 360 N.C. 53, 619 S.E.2d 502 (2005). A substantial right is affected when “'(1) the same factual issues would be present in both trials and (2) the possibility of inconsistent verdicts on those issues exists.'” Estate of Redding v. Welborn, 170 N.C. App. 324, 328-29, 612 S.E.2d 664, 668 (2005)(quoting North Carolina Dep't of Transp. v. Page, 119 N.C. App. 730, 735-36, 460 S.E.2d 332, 335 (1995)). In this case, since it is impossible to determine whether the trial court granted summary judgment in favor of Defendant because of (a) the running of the statute of limitations, (b) the failure of consideration for the alleged modification of the Purchase Agreement, or (c) the non- existence of a contract between the parties, we agree with the parties that the immediate appeal is appropriate. Specifically, the factual issues as to the validity of the contract and any performance or lack of performance by either party of the contract's terms would be the same on the claim of Plaintiff and the counterclaim of Defendant, raising the possibility of a jury verdict on the counterclaim inconsistent with summary judgment on Plaintiff's claim. Thus, a substantial right is affected, and this appeal is properly before us.    
    We now reach the merits of this case. It is well settled that the statute of limitations in a breach of contract case is three years. See N.C. Gen. Stat. § 1-52(1) (2005); Page v. Lexington Ins. Co., ___ N.C. App. ___, 628 S.E.2d 427 (2006). It is equally well established that the statute of limitations begins to run “[a]s soon as the injury becomes apparent to the claimant or should reasonably become apparent[.]” Liptrap v. City of High Point, 128 N.C. App. 353, 355, 496 S.E.2d 817, 819, disc. review denied, 348 N.C. 73, 505 S.E.2d 873 (1998) (citing Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 493, 329 S.E.2d 350, 354 (1985)). Consequently, in this case, the statute of limitations began to run when Plaintiff was informed by Defendant in September 2001 that Plaintiff was prohibited from accessing the Bynum House property until further notice. As set out above, through its designated representative, Mr. Gilley, Plaintiff acknowledged that it considered Defendant's position to constitute “a violation of the agreement[.]”
    In ABL Plumbing & Heating Corp. v. Bladen County Bd. of Educ., 175 N.C. App. 164, 167-68, 623 S.E.2d 57, 59 (2005), disc. review denied, 360 N.C. 362, 629 S.E.2d 846 (2006), this Court held:
    Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to anymaterial fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003). On an appeal from a grant of summary judgment, our Court must determine “whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law.” Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998). We must view the evidence in the light most favorable to the nonmoving party. Id. If a plaintiff's claim is barred by the running of the applicable statute of limitations, summary judgment in favor of a defendant is appropriate. McCutchen v. McCutchen, 170 N.C. App. 1, 5, 612 S.E.2d 162, 165 (2005).

In the case sub judice, because Plaintiff's claim is barred by the applicable statute of limitations, we hold that the trial court properly granted Defendant's motion for summary judgment.
    Judges WYNN and GEER concur.
    Report per Rule 30(e).
    The judges concurred and submitted this opinion for filing prior to 31 December 2006.

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